Jocelyn Downie & Richard Liu*

Transcription

1 McGill Journal of Law and Health ~ Revue de droit et santé de McGill The Legal Status of Deep and Continuous Palliative Sedation without Artificial Nutrition and Hydration Jocelyn Downie & Richard Liu* Deep and continuous palliative sedation combined with the withholding or withdrawal of artificial nutrition and hydration (collectively termed PSs ANH ) is an important aspect of high-quality end-of-life care. It is one means of alleviating suffering. Unfortunately, the legality of this practice has been under-researched and PSs ANH is not yet appropriately regulated in Canada. In this paper, we explore the legal status of PSs ANH where it (1) will not hasten death (Type 1 PSs ANH); (2) might, but is not certain to, hasten death (Type 2 PSs ANH); or (3) is certain to hasten death (Type 3 PSs ANH). It is clear that Type 1 is lawful. While it could be argued that Types 2 and 3 are also lawful, their legal status is ultimately unclear. We argue that the current lack of clarity and robust regulation with respect to Types 2 and 3 is a profound disservice to suffering individuals and health care pro- La sédation palliative profonde et continue combinée à la suspension ou au retrait de la nutrition et de l hydratation artificielles (collectivement appelée «PSs ANH») est un aspect important des soins de fin de vie de haute qualité. C est un moyen d atténuer la souffrance. Malheureusement, la légalité de cette pratique n a pas fait l objet de recherches suffisantes et la PSs ANH n est pas encore réglementée de façon appropriée au Canada. Dans cet article, nous explorons le statut légal de la PSs ANH où elle (1) n accélérera pas la mort (PSs ANH de type 1) ; (2) pourrait, mais sans certitude, accélérer la mort (PSs ANH de type 2) ; ou (3) est certaine d accélérer la mort (PSs ANH de type 3). Il est clair que le type 1 est légal. Bien que l on puisse argumenter que les types 2 et 3 sont également légaux, leur statut juridique n est ultimement pas clair. Nous soutenons que le manque de clarté et * Jocelyn Downie, CM, FRSC, FCAHS, SJD, is a University Research Professor in the Faculties of Law and Medicine at Dalhousie University. Richard Liu holds a BA from the University of Cambridge and LLM from Harvard University. The authors would like to thank Brad Abernethy and Steve Coughlan for their challenging and constructive comments on earlier drafts of this paper and the Pierre Elliott Trudeau Foundation for financial support of this research. Jocelyn Downie & Richard Liu 2018 Citation: Jocelyn Downie & Richard Liu, The Legal Status of Deep and Continuous Palliative Sedation without Artificial Nutrition and Hydration (2018) 12:1 McGill JL & Health 29. Référence : Jocelyn Downie et Richard Liu, «The Legal Status of Deep and Continuous Palliative Sedation without Artificial Nutrition and Hydration» (2018) 12 : 1 RD & santé McGill 29.

2 30 McGill Journal of Law and Health Vol. 12 Revue de droit et santé de McGill No. 1 viders and should be remedied by the federal government through amendments to the Criminal Code. We then propose amendments that would bring clarity, coherence, and comprehensiveness to end-of-life law, policy, and practice and thus enable better care for the dying. de réglementation rigoureuse concernant les types 2 et 3 nuisent profondément aux personnes souffrantes ainsi qu aux fournisseurs de soins de santé et que le gouvernement fédéral devrait y remédier en apportant des modifications au Code criminel. Nous proposons ensuite des modifications qui apporteraient de la clarté, de la cohérence et de l exhaustivité au droit, aux politiques et à la pratique en fin de vie et qui permettront ainsi de mieux prendre soin des mourants. Introduction 31 I. What Is the Legal Status of PSsĀNH? 32 A. Provincial and territorial legislation 32 B. Case law explicitly commenting on the issue 35 C. The Criminal Code Aiding suicide Administering a noxious thing Failure to provide the necessaries of life Criminal negligence causing death Culpable homicide (murder or manslaughter) 56 II. How Should the Law Surrounding PSsĀNH Be Clarified, Regulated, and Reformed? 61 Conclusion 66

3 2018 The Legal Status of Deep and Continuous Palliative Sedation 31 without Artificial Nutrition and Hydration Introduction A patient has end-stage lung cancer. He is suffering extreme pain and the profound discomfort of breathlessness. His death from the cancer is anticipated within hours. He has an advance directive that refuses all treatment including artificial nutrition and hydration. He asks his physician for deep and continuous sedation as it is the only way to alleviate his suffering. His physician refuses for fear of criminal liability and the patient dies after 36 hours of agony. Was the physician s fear of liability reasonable? Another patient has multiple system organ failure and is likely to die within days. Her profound agitation can only be alleviated by deep sedation. Without discussing it with the patient or her family, the physician initiates deep and continuous sedation and withholds artificial nutrition and hydration. She dies in 12 days. Was the physician s conduct lawful? Another patient has Huntington s disease. Her death from the disease is inevitable but only after a long, slow decline, including a lengthy period of dementia. She has reached the point at which she feels her suffering outweighs the value of her life but her death from the disease is still a number of years away. She tells her physician that she would like to have deep and continuous sedation and she refuses artificial nutrition and hydration. Her physician complies with her wishes and she dies in 15 days. Was the physician s conduct lawful? Deep and continuous palliative sedation combined with the withholding or withdrawal of artificial nutrition and hydration (collectively termed PSs ANH ) 1 is an important aspect of high-quality end-of-life care. It is one (and sometimes the only) means of alleviating or ending suffering. 2 Unfortunately, the legality of this practice has been under-researched and PSs ANH is not yet adequately regulated in Canada. It is therefore not at all surprising that physicians and patients might not know what their legal rights and responsibilities are with respect to PSs ANH. It should not be surprising if it turns out that the scenarios described above are happening in Canada. But should they be happening? 1 s is the medical abbreviation for without. 2 See Société québécoise des médecins de soins palliatifs & Colle ge des médecins du Québec, Palliative Sedation at the End of Life: 08/2016 Practice Guidelines (Montréal: Collège des médecins du Québec, 2016) at 8, online: <

4 32 McGill Journal of Law and Health Vol. 12 Revue de droit et santé de McGill No. 1 In this paper, we explore the legal status of PSs ANH where it (1) will not hasten death (Type 1 PSs ANH); (2) might, but is not certain to, hasten death (Type 2 PSs ANH); or (3) is certain to hasten death (Type 3 PSs ANH). The three scenarios described above map onto the three types of PSs ANH. We explore provincial and territorial legislation, case law explicitly commenting on the issue, and the Criminal Code in order to determine whether and, if so, under what circumstances the three types of PSs ANH are legal under Canadian criminal law. We conclude that Type 1 is clearly lawful. While it could be argued that Types 2 and 3 are also lawful, we conclude that their legal status is ultimately unclear. We argue that the current lack of clear and robust regulation is a profound disservice to suffering individuals and health care providers and should be remedied by the federal government through amendments to the Criminal Code. We then propose amendments that would bring clarity, coherence, and comprehensiveness to end-of-life law, policy, and practice and thus enable better care for the dying. I. What Is the Legal Status of PSsĀNH? An examination of provincial and territorial legislation, case law, and the Criminal Code is required in order to determine the legality of PSs ANH. A. Provincial and territorial legislation The only relevant provincial or territorial legislation is from Québec. Since An Act respecting end-of-life care (the Québec Act) came into force in Québec on 10 December 2015, patients in Québec have had a right to palliative care and, more specifically, to continuous palliative sedation, if their condition requires it and the parameters established by the Québec Act are met. 3 Continuous palliative sedation is defined in the Québec Act as care that is offered as part of palliative care and consists in administering medications or substances to an end-of-life patient to relieve their suffering by rendering them unconscious without interruption until death ensues. 4 3 CQLR c S , ss 4, Ibid, s 3(5) [emphasis added].

5 2018 The Legal Status of Deep and Continuous Palliative Sedation 33 without Artificial Nutrition and Hydration Palliative care is defined in the Québec Act as the total and active care delivered by an interdisciplinary team to patients suffering from a disease with reserved prognosis, in order to relieve their suffering, without delaying or hastening death. 5 The Québec Act does not specifically address the withholding or withdrawal of artificial nutrition and hydration. However, continuous palliative sedation is defined as part of palliative care, which in turn is defined (for the purposes of the Québec Act) 6 as care that does not hasten death. The absence of artificial nutrition and hydration in a Type 1 situation does not hasten death. It is therefore reasonable to conclude that the Québec Act permits deep and continuous sedation coupled with the withholding or withdrawal of artificial nutrition and hydration where death is already imminent (Type 1 PSs ANH). However, the Québec Act arguably cannot be taken to permit Types 2 and 3 PSs ANH because the legislation is permissive rather than prohibitive in nature and its definition of palliative sedation captures only Type 1 PSs ANH. Recognizing the need for guidance on the practice of palliative sedation, the Colle ge des médecins du Québec released practice guidelines in August Interestingly, these guidelines assume that Types 1 and 2 PSs ANH are legal under the Québec legislation. The guidelines explicitly 5 Ibid, s 3(4) [emphasis added]. 6 It should be noted that we do not, in this paper, take a position on the debate about the definition of palliative care specifically, whether the hastening of death can be a feature of palliative care outside of the context of the Québec Act. The most commonly accepted definitions of palliative care share the view that palliative care does not hasten death (see e.g. the definition adopted in Canadian Hospice Palliative Care Association, A Model to Guide Hospice Palliative Care (Ottawa: CHPCA, 2013) at 6, online: < net/media/319547/norms-of-practice-eng-web.pdf>). However, especially following the decriminalization of medical assistance in dying (MAID), some argue that hastening death can be a part of, or is consistent with, palliative care (see e.g. Lieve Van den Block et al, Euthanasia and Other End of Life Decisions and Care Provided in Final Three Months of Life: Nationwide Retrospective Study in Belgium (2009) 339:7717 BMJ 390 at 390). The analysis in this paper does not turn on the resolution of this debate and so we do not address it further. 7 See supra note 2.

6 34 McGill Journal of Law and Health Vol. 12 Revue de droit et santé de McGill No. 1 state that they have taken into account the Québec Act 8 but then state that continuous sedation is permissible for those with a prognosis of survival of two weeks or less. 9 This implies that Types 1 and 2 PSs ANH are legal. They do not explain how Type 2 is legal given the interaction of the definitions of continuous palliative sedation and palliative care set out above. The guidelines propose the following limits: Continuous sedation should be reserved for patients with refractory symptoms and a prognosis of survival of two weeks or less. For patients whose prognosis is uncertain or estimated to be more than two weeks, sedation may be initiated and will be intermittent or continuous depending on how the patient s condition evolves. 10 The guidelines also recognize the uncertainty about the withholding or withdrawal of artificial hydration and nutrition in the context of continuous palliative sedation. They state that, legally, natural nutrition and hydration are also considered to be treatments to which the patient can consent or refuse. 11 No authority is cited for this statement. Nor does the statement provide any suggestion that there may be circumstances in which failure to respect a refusal may be legal (e.g., some cases of anorexia). Nor do the guidelines give much guidance regarding nutrition and hydration, stating only that, [i]n fact, continuous palliative sedation rarely involves withholding nutrition or hydration, for they are usually discontinued spontaneously by the patient. 12 What is to be done in circumstances where that has not happened? And what is to be done about artificial nutrition and hydration? Further uncertainty exists because of the relationship between the Québec Act and the federal Criminal Code. Under the province s jurisdiction over health, 13 the Québec Act may be able to restrict that which is not 8 Ibid at 6. 9 Ibid at Ibid. 11 Ibid at Ibid. 13 Provincial jurisdiction over health care is rooted in the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, ss 92(7), 92(13), reprinted in RSC 1985, Appendix II, No 5. For a discussion of how section 92(13) of the Constitution Act relates to health care (specifically, professions relating to health care), see Commis-

7 2018 The Legal Status of Deep and Continuous Palliative Sedation 35 without Artificial Nutrition and Hydration prohibited under the Criminal Code. 14 However, it cannot make legal that which the Criminal Code prohibits (assuming, for the sake of argument, that the federal government has jurisdiction to regulate PSs ANH under its criminal law power). Thus, even in Québec, which, unlike the other provinces and territories, has legislation and practice guidelines regarding PSs ANH, uncertainty remains. Practitioners in Québec trying to understand the legal status of PSs ANH would still need to turn to the Criminal Code (discussed in detail in Sub-Part C). It is worth noting here that the first official report from the Québec Commission sur les soins de fin de vie indicates that between 10 December 2015 and 9 June 2016, there were 263 cases of palliative sedation in Québec. 15 It is unclear whether the palliative sedation that is being reported is in fact limited to Type 1 PSs ANH and whether providers, and perhaps even the Commission, are aware of the implications of the narrow definition of palliative sedation found in the Québec Act. B. Case law explicitly commenting on the issue The legality of PSs ANH has not been explicitly tested in any case law. There are, however, some obiter dicta in the British Columbia Supreme Court case of Carter v Canada (AG) (Carter BCSC) 16 and the subsequent appeal to the Supreme Court of Canada (Carter SCC) 17 that seem to sugsion on the Future of Health Care in Canada, Constitutional Jurisdiction over Health and Health Care Services in Canada, by Howard Leeson, Discussion Paper No 12 (August 2002) at 5, online: < However, the Supreme Court of Canada has recognized that health is not assigned specifically to one head of power. See Schneider v The Queen, [1982] 2 SCR 112 at 142, 139 DLR (3d) See e.g. Alberta s Human Tissue and Organ Donation Act, 2006 c H-14.5, s 3(2), which prohibits the sale and purchase of tissues, organs, and bodies. There is no prohibition of such activities in the Criminal Code. 15 Rapport annuel d activités: 10 décembre juin 2016 (Québec: Gouvernement du Québec, 2016) at BCSC 886, 261 CRR (2d) 1 [Carter BCSC] SCC 5, [2015] 1 SCR 331 [Carter SCC].

8 36 McGill Journal of Law and Health Vol. 12 Revue de droit et santé de McGill No. 1 gest that at least some PSs ANH is lawful. However, neither decision directly tested the legality of PSs ANH, nor distinguished between the types of PSs ANH, so they did not contribute much to the task of clarifying the law on this issue. 18 In Carter BCSC, Justice Smith defined palliative sedation in broad terms such that sedation may be accompanied by the withdrawal of artificial hydration and nutrition. 19 She also used the phrase terminal sedation interchangeably with the phrase palliative sedation. 20 Justice Smith noted: So far as I am aware, palliative or terminal sedation has not been the subject of judicial consideration in Canada. It seems, however, to be a practice that may fall within the principles already described with regard to informed consent and potentially life-shortening symptom relief. 21 Justice Smith s statement that palliative sedation may fall within the principle of potentially life-shortening symptom relief is a reference to an earlier passage in her judgment in which she quotes Justice Sopinka writing for the majority in Rodriguez v British Columbia (AG) (Rodriguez): The administration of drugs designed for pain control in dosages which the physician knows will hasten death constitutes active contribution to death by any standard. However, the distinction drawn here is one based upon intention in the case of palliative care the intention is to ease pain, which has the effect of hastening death, while in the case of assisted suicide, the intention is undeniably to cause death.... In my view, distinctions based upon intent are important, and in fact form 18 In Carter v Canada (AG), the plaintiffs challenged the Criminal Code prohibitions on assisted suicide and voluntary euthanasia. They argued that these prohibitions violated sections 7 and 15 of the Canadian Charter of Rights and Freedoms and could not be saved under section 1 (see Carter BCSC, supra note 16 at para 22). Kay Carter was an 89-year-old woman with spinal stenosis whose family (the plaintiffs in the case) took her to Switzerland for assisted suicide when her suffering became intolerable (see ibid at paras 57 68). Gloria Taylor, another plaintiff, was a 64-year-old woman with amyotrophic lateral sclerosis (a fatal neurodegenerative condition) (see ibid at para 47). 19 Ibid at para Ibid. 21 Ibid at para 226.

9 2018 The Legal Status of Deep and Continuous Palliative Sedation 37 without Artificial Nutrition and Hydration the basis of our criminal law. While factually the distinction may, at times, be difficult to draw, legally it is clear. 22 Unfortunately, there are a number of problems with relying on Justice Sopinka s statement in Rodriguez as the basis for a claim that PSs ANH is legal. First, it is unclear whether Justice Sopinka would have included PSs ANH in his definition of palliative care. As Justice Smith noted in Carter BCSC, [t]he majority in Rodriguez did not refer to palliative sedation. 23 Justice Sopinka appeared to have only been contemplating the potentially life-shortening effects of opioids and other pain medications (but not sedatives) and not the life-shortening effects of the withholding or withdrawal of artificial nutrition and hydration. Second, as evidenced by the excerpt above, Justice Sopinka relied upon the doctrine of double effect, although he did not refer to it by name. This doctrine states that if the intention 24 of the physician who administers the drugs to the patient is not to kill them but to help them (e.g., by alleviating pain), then the practice is still lawful even if it is foreseen to possibly (or certainly) 25 shorten the patient s life. This doctrine is very popular, especially in the end-of-life context, among palliative care physicians and Catholics. 26 However, it has also been heavily criticized in ethics 22 [1993] 3 SCR 519 at 607, 82 BCLR (2d) 273 [Rodriguez], cited in Carter BCSC, supra note 16 at para Supra note 16 at para Intention is understood in the narrow sense here and encompasses only situations where the defendant s actual object or purpose is to cause a consequence and not where they merely foresee that a consequence will occur. 25 The doctrine is said to apply even where death is foreseen as a certain consequence and not just a possible consequence. This is implied by Justice Sopinka s comments in Rodriguez as he applies the doctrine to the administration of drugs designed for pain control in dosages which the physician knows will hasten death (supra note 22 at 607 [emphasis added]). See also Dan Brock, Physician-Assisted Suicide as a Last-Resort Option at the End of Life in Timothy E Quill & Margaret P Battin, eds, Physician-Assisted Dying: The Case for Palliative Care and Patient Choice (Baltimore: Johns Hopkins University Press, 2004) at 136 ( But if death comes unintentionally as the consequence of an otherwise well-intentioned intervention, even if foreseen with a high probability or even certainty, the physician s action can be morally acceptable ). 26 See e.g. Joseph Boyle, Who Is Entitled to Double Effect? (1991) 16:5 J Med Philos 475; Daniel P Sulmasy & Edmund D Pellegrino, The Rule of Double

10 38 McGill Journal of Law and Health Vol. 12 Revue de droit et santé de McGill No. 1 literature. 27 More importantly for the purposes of this paper, and as will be explained in Sub-Part 5, there is significant legal authority rejecting double effect in the context of the Criminal Code. Therefore, double effect does not form part of Canadian criminal law. Third, Justice Smith agreed with the Attorney General of Canada s claim that the criminal law does not appear to recognize a distinction between intentionally bringing about a prohibited consequence and doing something knowing that the prohibited consequence is virtually certain to result. 28 She went on to distinguish the context of Justice Sopinka s statements from that of Carter: However, I note that Sopinka J. was drawing a line between acceptable end-of-life practices and criminal acts in the context of a constitutional challenge. The Court did not have a criminal case before it. The specific constitutional and factual context of the Rodriguez case, in particular its focus on the implications of the requirement for informed consent to medical treatment and on the legality of existing end-of-life practices, may explain why the majority s comments about intention do not perfectly track criminal law doctrine regarding intention and causation in homicide cases. 29 Of course, the issue being discussed in this paper is the potential for criminal liability for the provision of PSs ANH not a constitutional challenge to a ban on PSs ANH. Despite these three problems with relying on Justice Sopinka s statement in Rodriguez, Justice Smith in Carter BCSC tentatively suggested that Effect: Clearing Up the Double Talk, Commentary, (1999) 159:6 Arch Intern Med See e.g. Frances M Kamm, The Doctrine of Double Effect: Reflections on Theoretical and Practical Issues (1991) 16:5 J Med Philos 571; Timothy E Quill, Rebecca Dresser & Dan W Brock, The Rule of Double Effect: A Critique of Its Role in End-of-Life Decision Making, Sounding Board, (1997) 337:24 New Eng J Med Carter BCSC, supra note 16 at paras 327 (Attorney General of Canada s statement), 328 (Smith J s affirmation) [emphasis in original]. 29 Ibid at para 328.

11 2018 The Legal Status of Deep and Continuous Palliative Sedation 39 without Artificial Nutrition and Hydration [palliative sedation] may fall within the principles guiding potentially life-shortening symptom relief. 30 If it does, then at least some palliative sedation is lawful. A further problem is that, even if we take Justice Smith s tentative comments as definitive, it is unclear whether she meant to suggest that all types of PSs ANH are lawful either all of the time or some of the time or only Types 1 and 2 are lawful (always or sometimes). Her comments on PSs ANH (albeit not using that acronym) potentially cover all three types of PSs ANH. Justice Smith did have before her the fact that palliative sedation combined with the withholding of artificial nutrition and hydration may be used to hasten death. She reported that the plaintiffs and the defendants both accepted the use of PSs ANH to hasten death as lawful. 31 She seemed to agree 32 with the defendants submission that the law permits death-hastening acts through declining nutrition and hydration while under palliative sedation 33 (i.e., PSs ANH). Justice Smith herself suggested that palliative sedation without nutrition or hydration is one possible method that those who are suffering may use to hasten death. 34 Therefore, an argument could be made that Justice Smith s comments 35 are supportive of the legality of all types of PSs ANH (in at least some circumstances). In Carter SCC, the Supreme Court of Canada simply stated that [t]he law allows people in this situation [a grievous and irremediable condition] to request palliative sedation, [or] refuse artificial hydration and nutrition. 36 The Court did not provide any guidance on the boundaries of permissibility and did not distinguish between the different types of PSs ANH. It is possible that the Court did not contemplate a situation in which, for example, PSs ANH is used to hasten death when the patient otherwise has years to live 30 Ibid at para Ibid at paras 321 (Justice Smith s acknowledgment of plaintiff s position), 1075 (Justice Smith s acknowledgment of defendant s statement). 32 See ibid at para Ibid at para Ibid at paras See ibid at para Supra note 17 at para 66.

12 40 McGill Journal of Law and Health Vol. 12 Revue de droit et santé de McGill No. 1 (a Type 3 situation). Thus, it is unclear whether the Court would accept all types of PSs ANH as legal. Overall, it is not possible to draw any meaningful conclusions about the legal status of PSs ANH from the case law that explicitly mentions it. There are obiter dicta in the Carter decisions, especially in the trial decision, which suggest that at least some types of PSs ANH are at least sometimes lawful. Still, neither Justice Smith nor the Supreme Court of Canada fully addressed, appreciated, or even had before them, the complex issue of the legality of all three types of PSs ANH. C. The Criminal Code The legal status of PSs ANH is still insufficiently clear after an analysis of provincial and territorial legislation and case law that explicitly addresses it. Therefore, it is necessary to ask de novo whether, on an application of the elements of criminal law for various offences, the physician would be liable for the offence. There are several provisions of the Criminal Code that PSs ANH might offend: (1) aiding suicide, (2) administering a noxious thing, (3) failure to provide the necessaries of life, (4) criminal negligence causing death, and (5) culpable homicide in the form of manslaughter or murder. 1. Aiding suicide Does PSs ANH constitute aiding suicide under the Criminal Code? Section 241(1) on counselling or aiding suicide reads: Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years who, whether suicide ensues or not, (a) counsels a person to die by suicide or abets a person in dying by suicide; or (b) aids a person to die by suicide Criminal Code, RSC 1985, c C-46.

13 2018 The Legal Status of Deep and Continuous Palliative Sedation 41 without Artificial Nutrition and Hydration The federal legislation on medical assistance in dying (the MAID Act) 38 effectively makes legal some actions that would otherwise constitute the offence of aiding suicide. However, the assisted suicide provision of the MAID Act covers only assistance with the self-administration of a substance. 39 The substance in PSs ANH (sedatives) is not self-administered 40 even if it were self-administered at the outset, it could not continue to be so as it requires ongoing administration after the loss of capacity. Thus, the recent decriminalization of some forms of assisted suicide will not prevent PSs ANH from contravening the aiding suicide provision of the Criminal Code. Two issues therefore need to be considered: (1) whether the patient s refusal of artificial nutrition and hydration constitutes suicide such that physicians provision of PSs ANH is aiding suicide (because it includes withholding or withdrawing artificial hydration and nutrition); and (2) whether the patient s request for, and consent to, deep and continuous sedation in order to make self-starvation and dehydration possible (or simply to make it more comfortable) constitutes suicide such that providing deep and continuous sedation is aiding suicide. The first issue is whether the patient s refusal of artificial nutrition and hydration on its own constitutes suicide. The answer to this question is clear for Type 1 PSs ANH as it, by definition, does not hasten death. The answer to this question is unclear for Types 2 and 3 PSs ANH. Justice Bouck in the British Columbia Supreme Court case of British Columbia (AG) v Astaforoff (Astaforoff BCSC) held that dying via a selfimposed hunger strike was equivalent to suicide. 41 It must be noted, however, that this case took place in 1983 and in the context of a prison rather than a hospital. 38 An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), SC 2016, c 3 [MAID Act]. 39 Ibid, s 3, amending Criminal Code, supra note 37, s 241.1(b). 40 See UCLA Hospital System, Administration of Palliative Sedation to the Dying Patient, Policy HS 1318, revised 30 September 2015 at 5, online: < icy.pdf>. 41 [1983] 6 WWR 322 at para 16, 6 CCC (3d) 498 [Astaforoff BCSC].

14 42 McGill Journal of Law and Health Vol. 12 Revue de droit et santé de McGill No. 1 Justice Dufour in the Québec Superior Court case of Nancy B v Hôtel- Dieu de Québec held that a physician who assists a patient by turning off their respirator, thereupon resulting in their death, is not liable for counselling or aiding suicide. 42 Justice Dufour seemed to have reached this conclusion on the basis that the refusal of artificial respiration is not suicide in the first place. He quoted with approval a passage from the American decision of Re Conroy, which stated that declining life-sustaining medical treatment may not properly be viewed as an attempt to commit suicide. 43 While he did not explicitly consider whether the refusal of artificial nutrition and hydration would constitute suicide, he did state, albeit in the context of considering a different point under the Civil Code of Québec, that placing someone on a respirator was a technique of the same nature as that of feeding a patient. One cannot therefore make distinctions between artificial feeding and other essential life-sustaining techniques. 44 The logic of this passage suggests that if he had turned his mind to it, Justice Dufour would have concluded that the refusal of artificial nutrition and hydration also does not constitute suicide. However, in Carter BCSC, the Attorneys General for British Columbia and Canada took the position that individuals can commit suicide by refusing sustenance. 45 By way of example, Canada noted that people with complete disability can still commit suicide by refusing treatment, hydration or nutrition, 46 while British Columbia submitted that the able bodied and the disabled can equally commit suicide by refusing to eat or drink or by refusing provision of artificial nutrition or hydration. 47 Justice Smith did not take issue with this characterization of refusing oral or artificial hydration or nutrition as suicide and, on appeal, the Supreme Court of Canada did not take issue with her acceptance of the characterization. It must be noted here that Justice Smith did not speak to circumstances in which a patient refuses oral or artificial nutrition and hydration in the 42 (1992), 86 DLR (4th) 385 at 394, 69 CCC (3d) 450 [Nancy B] A (2d) 1209 at 1224 (NJ Sup Ct 1985), cited in Nancy B, supra note 42 at Nancy B, supra note 42 at Supra note 16 at para Ibid at para Ibid at para 1067.

15 2018 The Legal Status of Deep and Continuous Palliative Sedation 43 without Artificial Nutrition and Hydration final stages of a grievous and irremediable medical condition. Perhaps she would, if asked, have said that refusal of oral or artificial nutrition and hydration by the able-bodied or persons with disabilities is suicide, but refusal by a patient who is, for example, three weeks away from dying of cancer is not. While this conclusion might reflect the views of physicians and clinical practice, we do not have reliable data on those views, on the incidence of withholding or withdrawal of oral or artificial nutrition and hydration for varying prognoses, or on the practices of those completing medical certificates of death. Nor can we conclude what Justice Smith would have said. If refusing oral or artificial nutrition and hydration is suicide, then the next question that must be answered is whether withholding or withdrawing oral or artificial nutrition and hydration is aiding suicide. This is precisely the question that was raised in Bentley v Maplewood Seniors Care Society (Bentley). 48 Unfortunately, the British Columbia Supreme Court declined to answer the question on the grounds that, as a civil court, it had no ability to grant a declaration that could bind prosecutorial discretion. This Court cannot declare that those providing care to Mrs. Bentley would be immune from criminal liability for withdrawing nourishment and liquids by prompting with a spoon or glass. Nor can this Court declare that those providing care to Mrs. Bentley would be criminally liable for doing so. 49 If the refusal of artificial nutrition and hydration is suicide, it is hard to escape the conclusion that a physician who withholds or withdraws a patient s artificial nutrition and hydration would commit the offence of aiding suicide. While aiding is not defined within section 241(1), we can turn to section 21(1)(b) and its associated jurisprudence for interpretive assistance. Under section 21(1)(b), a person is a party to an offence when he does or omits to do anything for the purpose of aiding any person to commit it. 50 Withholding artificial nutrition and hydration constitutes omitting to do something. Withdrawing constitutes doing something. Therefore, the actus reus of the offence is met. For the purpose of has been understood to involve intention and knowledge: BCSC 165, [2014] 7 WWR Ibid at para Criminal Code, supra note 37.

16 44 McGill Journal of Law and Health Vol. 12 Revue de droit et santé de McGill No. 1 For the intent component, it was settled in R v Hibbert that purpose in s. 21(1)(b) should be understood as essentially synonymous with intention. The Crown must provide that the accused intended to assist the principal in the commission of the offence. The Court emphasized that purpose should not be interpreted as incorporating the notion of desire into the fault requirement for party liability. It is therefore not required that the accused desired that the offence be successfully committed. 51 The perpetrator s intention to kill the victim must be known to the aider or abettor; it need not be shared It is sufficient that he or she, armed with knowledge of the perpetrator s intention to commit the crime, acts with the intention of assisting the perpetrator in its commission. 52 Moreover, wilful blindness to the patient s intention can constitute the required knowledge. 53 Given this, it seems that withholding or withdrawing artificial nutrition and hydration constitutes aiding suicide (if refusal of artificial nutrition and hydration is suicide). However, it is widely assumed that withholding or withdrawing artificial nutrition and hydration is perfectly legal. Indeed, this is the position held by the Attorneys General of Canada and British Columbia, the trial judge, and the Supreme Court of Canada in Carter. 54 It is not surprising that this practice is widely assumed to be perfectly legal, given our legal system s profound commitment to bodily integrity. The Supreme Court of Canada has clearly endorsed the view that the common law concept of bodily integrity requires that health care providers not touch patients without their consent. 55 Starting or continuing treatment that 51 R v Briscoe, 2010 SCC 13 at para 16, [2010] 1 SCR 411 [Briscoe], citing R v Hibbert, [1995] 2 SCR 973 at para 35, 99 CCC (3d) Briscoe, supra note 51 at para 18 [emphasis in original]. 53 See ibid at para See Carter BCSC, supra note 16 at paras 1067, 1049, 231; Carter SCC, supra note 17 at para See e.g. Ciarlariello v Schacter, [1993] 2 SCR 119 at 132, 100 DLR (4th) 609 [Ciarlariello].

17 2018 The Legal Status of Deep and Continuous Palliative Sedation 45 without Artificial Nutrition and Hydration involves touching the patient (as artificial nutrition and hydration does), if done against a patient s wishes, is considered tortious battery 56 or criminal assault under section 265 of the Criminal Code. 57 It is here that incoherence arises. Two lines of reasoning can be followed that lead to incompatible results. First: Refusing nutrition and hydration is suicide. Aiding suicide is illegal. Withholding/withdrawing artificial nutrition and hydration is aiding. Therefore withholding/withdrawing artificial nutrition and hydration is aiding suicide. Therefore withholding/withdrawing artificial nutrition and hydration is illegal. Second: Touching someone without their consent is illegal. Starting or continuing artificial nutrition and hydration is touching. Therefore, starting or continuing artificial nutrition and hydration without consent is illegal. There are several ways to resolve this incoherence: Declare that refusing artificial nutrition and hydration is not suicide. Declare that withholding or withdrawing artificial nutrition and hydration is not aiding. Declare that starting or continuing artificial nutrition and hydration without consent is not battery or assault. Declare that refusing artificial nutrition and hydration is suicide and that withholding or withdrawing artificial nutrition and hydration is aiding suicide, but withholding or withdrawing artificial nutrition and hydration is nonetheless lawful. 56 See ibid. 57 Supra note 37.

18 46 McGill Journal of Law and Health Vol. 12 Revue de droit et santé de McGill No. 1 Without one of these steps being taken by a court or legislature, a physician must choose between (1) withholding or withdrawing artificial nutrition and hydration in accordance with a patient s wishes and thereby perhaps aiding suicide or (2) providing the artificial nutrition and hydration (which requires touching the patient) against a patient s wishes and thereby committing the tort of battery or criminal assault under section 265 of the Criminal Code. It is not clear what the courts would do if confronted with this issue. Up to this point, we have asked whether the refusal of artificial nutrition and hydration constitutes suicide such that withholding or withdrawing artificial nutrition and hydration is aiding suicide. Now, we take up the second question: does the request for and consent to deep and continuous sedation in order to make self-starvation and dehydration possible (or simply to make it more comfortable) constitute suicide such that the provision of deep and continuous sedation in response to that request is aiding suicide? Can it be said that the provision of sedation as opposed to the withholding or withdrawal of artificial nutrition and hydration, as discussed above provides the means of committing suicide? In some cases, it may well be that the only way a patient could successfully starve or dehydrate themselves to death is by being deeply and continuously sedated. We can imagine that such a patient, quite understandably, would otherwise lack the willpower to commit suicide in this way. Let us call these the insufficient will cases. These cases are more likely to be Type 3 PSs ANH than Type 2, as Type 3 would require more willpower than Type 2 by virtue of it likely taking longer to die by starvation and/or dehydration. In these cases, sedation is a means that allows the patient to starve or dehydrate themselves to death. If refusing artificial nutrition and hydration is suicide, then the provision of sedation would, in these insufficient will cases, be aiding suicide. But can it be said that the provision of sedation is aiding suicide, even where it is not the means of committing suicide as in the insufficient will cases (i.e., the patient would have starved or dehydrated themselves to death even without sedation)? That is, does it constitute aiding suicide by making the self-starvation and dehydration more comfortable? We argue that it would not be the means of committing suicide if, even without the sedation, the patient would have refused oral nutrition and hydration and then refused artificial nutrition and hydration once oral nutrition and hydration became impossible. In such a case, the sedation is simply for comfort and is not a means of suicide the patient dies no sooner than they otherwise would have from simply ceasing to eat and drink and refusing artificial nutrition and hydration. If making more comfortable is understood to con-

19 2018 The Legal Status of Deep and Continuous Palliative Sedation 47 without Artificial Nutrition and Hydration stitute aiding, then providing sedation could be aiding suicide. If not, then providing sedation would not be aiding suicide. It seems less likely that a court would find a physician liable for aiding suicide in the making more comfortable cases than insufficient will cases. However, in both of these situations ( insufficient will and making more comfortable ), we ultimately return to the lack of certainty around whether or not refusing artificial nutrition and hydration in Types 2 and 3 PSs ANH is suicide. In summary, the provision of Type 1 PSs ANH is not aiding suicide because it does not hasten death. The provision of Types 2 and 3 PSs ANH might be aiding suicide, especially where the patient is able to follow through on the refusal of all nutrition and hydration only if they are sedated (this being more likely in a Type 3 than Type 2 situation). 2. Administering a noxious thing Does PSs ANH constitute administering a noxious thing under the Criminal Code? Section 245(1)(a) on administering a noxious thing reads: Every one who administers or causes to be administered to any person or causes any person to take poison or any other destructive or noxious thing is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years, if he intends thereby to endanger the life of or to cause bodily harm to that person. 58 This question can be answered quite readily because a sedative, properly administered, is not a poison or any other destructive or noxious thing. Properly administered, a sedative is not harmful. Therefore all three types of PSs ANH, properly administered, should not be considered administering a noxious thing. 3. Failure to provide the necessaries of life Does PSs ANH constitute failure to provide the necessaries of life under the Criminal Code? Section 215 on the duty on persons to provide the necessaries of life reads, in part: 58 Criminal Code, supra note 37.

20 48 McGill Journal of Law and Health Vol. 12 Revue de droit et santé de McGill No. 1 (1) Every one is under a legal duty (c) to provide necessaries of life to a person under his charge if that person (i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and (ii) is unable to provide himself with necessaries of life. (2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies on him, to perform that duty, if (b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently. 59 It might appear that a physician commits the offence of failing to provide the necessaries of life when they withhold or withdraw artificial nutrition and hydration from a patient as part of PSs ANH. For this to be the case, the physician would have to be under a legal duty to administer artificial nutrition and hydration and there would have to be no legal excuse for failing to provide artificial nutrition and hydration. There is no duty to provide artificial nutrition and hydration in a Type 1 PSs ANH situation as, by definition, artificial nutrition and hydration cannot extend life and thus cannot be a necessary of life. That still leaves uncertainty around Types 2 and 3 PSs ANH. Where there is no consent to Types 2 and 3 PSs ANH (i.e., there is no refusal of artificial nutrition and hydration), the physician has a duty to provide artificial nutrition and hydration and has no legal excuse for failing to provide it. 60 But what about when the patient or substitute decision maker has refused artificial nutrition and hydration? 59 Ibid. 60 We are presuming that, barring some exceptions that do not apply here, physicians do not have the legal authority to unilaterally withhold or withdraw

21 2018 The Legal Status of Deep and Continuous Palliative Sedation 49 without Artificial Nutrition and Hydration In Astaforoff BCSC, Justice Bouck made it clear that correctional authorities did not have a legal duty under what is now section 215 of the Criminal Code to forcibly feed a prisoner who was on a hunger strike, even though she was likely to die without the force-feeding. 61 It could be argued that this situation is analogous to that of a physician who is alleged to be under a legal duty to administer artificial nutrition and hydration to a patient who clearly objects to the practice and that, in both situations, there is no legal duty to do so. Unfortunately, Astaforoff is the only case to address this issue. The court in Bentley was asked whether there is a legal duty to provide oral nutrition and hydration under the Criminal Code, but it declined to answer on the grounds that, as a civil court, it could not issue an enforceable declaration that would bind the exercise of prosecutorial discretion. 62 There is thus little guidance available from the case law directly. We can argue from the case law indirectly, starting from the well-established common law right for competent adults to refuse medical treatment or to demand that medical treatment be discontinued, even if such treatment is life-sustaining. 63 This right to refuse treatment has been extended beyond contemporaneous refusals made by competent individuals to refusals made through valid advance directives or by legally authorized substitute decision makers. 64 The provision of artificial nutrition and hydration appears to fall within the term medical treatment, as forcibly feeding potentially life-sustaining treatment. This conclusion has been defended elsewhere and we rely on that defence (see e.g. Jocelyn Downie, Lindy Willmott & Ben White, Cutting the Gordian Knot of Futility: A Case for Law Reform on Unilateral Withholding and Withdrawal of Potentially Life-Sustaining Treatment (2014) 26:1 NZULR 24). 61 Supra note 41 at para 14. This decision was affirmed on appeal, where it was held that there is no such statutory duty, at least on the basis of the statutes and regulations to which we were referred. I do not think that any of those statutes or regulations can be construed so as to import a duty to feed a prisoner by force without the prisoner s consent (British Columbia (AG) v Astaforoff (1983), [1984] 4 WWR 385 at para 16, 54 BCLR 309 [Astaforoff BCCA]). 62 Supra note 48 at para See Carter SCC, supra note 17 at para 67; Rodriguez, supra note 22 at 588, 598, 606, Sopinka J. 64 See e.g. Malette v Shulman (1990), 72 OR (2d) 417, 67 DLR (4th) 321 (CA); Fleming v Reid, 4 OR (3d) 74, 82 DLR (4th) 298 (CA); Health Care Consent

22 50 McGill Journal of Law and Health Vol. 12 Revue de droit et santé de McGill No. 1 a prisoner via a nasogastric tube was considered to be medical treatment in Astaforoff on appeal. 65 In fact, administering artificial nutrition and hydration to a patient against their wishes would likely constitute the tort of battery 66 and criminal assault under section 265 of the Criminal Code. Given this, it would arguably be wrong to conclude that a physician has a legal duty to provide artificial nutrition and hydration when they would be liable for battery and assault for doing so. A court might accept this argument and conclude that there is no duty to provide artificial nutrition and hydration where the patient or substitute decision maker has refused it. Similarly, a court might conclude that when a competent patient refuses artificial nutrition and hydration either contemporaneously or through a valid advance directive then the patient has withdrawn themselves from the physician s charge and there is, again, no duty. In the alternative, a court might conclude that there is a duty but that a refusal constitutes a lawful excuse for not meeting that duty. One source of a lawful excuse could be that administering artificial nutrition and hydration in the circumstances of a valid refusal would constitute tortious battery and criminal assault. A second source could be provincial or territorial consent legislation across Canada that allows patients or substitute decision makers to refuse consent to treatment, even if life-sustaining. 67 Unfortunately, on the grounds that a civil court cannot issue an enforceable declaration that would bind the exercise of prosecutorial discretion, the court in Bentley also declined to rule on whether consent provides a lawful excuse, in spite of the fact that section 14 of the Criminal Code establishes that [n]o person is entitled to consent to have death inflicted on them, and such consent does not affect the criminal responsibility of any person who inflicts death on the person who gave consent. 68 Act, 1996, SO 1996, c 2, Schedule A, s 20 [Ontario HCCA]; Care Consent Act, SY 2003, c 21, s Astaforoff BCCA, supra note 61 at para See e.g. Rodriguez, supra note 22 at 606; Ciarlariello, supra note 55 at See e.g. Ontario HCCA, supra note 64; Health Care (Consent) and Care Facility (Admission) Act, RSBC 1996, c 181, s 17; Consent to Treatment and Health Care Directives Act, RSPEI 1988, c Supra note 37.